J.D. Sharma, J.
1. The applicant is a cycle dealer of Allahabad, At about 5 p.m. on the 18th November 1958 a search was made of his shop and four cycle frames bearing the name 'Herculeans', four cycle frames bearing the trade mam 'Philipines', one cycle frame bearing 'BSC' and three cycle seats bearing the name 'Brooks' were recovered. These trade marks were not the original trade marks of the various companies but had been made subsequently.
2. The case for the prosecution was that the trade marks were counterfeit and as the various articles were in the possession of the accused for sale he committed an offence under Section 486 I.P.C.
3. Both the courts below accepted the prosecution version and convicted and sentenced the applicant to a fine of Rs. 1,000/- under Section 486 I.P.C.
4. The only contention urged on behalf of the applicant is that as it was not proved that the articles in question were not the manufacture of the various companies whose trade marks they bore, no offence under Section 486 I.P.C. was committed.
5. It appears that a similar objection was raised in the course of arguments in appeal before the Sessions Judge. There being no specific evidence on the point an order was made for recording further evidence under Section 428 Cr. P. C. The only witness examined on 27-8-1950 was Sri P. K. Mitra who had also been examined to prove the various trade marks. He could not say if the articles in question were or were not the manufacture of the various companies whose trade mark they bore. Therefore, on tne evidence it cannot be said that the articles were not manufactured by the various companies whose trade marks had been put on them.
6. The ingredients of an offence under Section 486 I.P.C. are:
(1) the accused sold or exposed or had in possession for sale or any purpose of trade or manufacture any goods or things;
(2) such goods or things had some trade mark or property mark affixed to or impressed upon them;
(3) such trade mark or property mark was counterfeit.
Section 28 I.P.C. says:
'A person is said to 'counterfeit' who causes one thing to resemble another thing, intending by means of that resemblance to practice deception, or knowing it to be likely that deception will thereby be practised.' A counterfeit trade mark is one by means of which resemblance to a genuine article is intended to deceive or to lead a purchaser to imagine that the counterfeit is in reality the genuine article. Therefore if a trade mark of a company is put on an article belonging to or manufactured by that company, then the trade mark is not counterfeit. An article does not cease to be the manufacture of a particular company merely because it has become old or the trade mark on it has faded. Suppose a 'Hercules' bicycle is repainted including its trade mark. Can it be said that the trade mark is counterfeit? Similarly, if a trade mark label on a bottle is torn off and another is affixed, can it be suggested that the trade mark is counterfeit? The answer is decidedly in the negative, because the article being genuine, there can be no intention to deceive.
7. It was urged on behalf of the State that the onus lay on the accused and it had not been discharged. Reliance is placed on Holland Bombay Trading Co. v. Buktear Mull 8 Cal WN 421 where it was held that the onus is not on the complainant to show that the accused acted dishonestly but on the accused to show that he has not committed any offence under Section 486 I.P.C. It is only when, it is proved that an accused person has sold or exposed or had been in possession for sale or any purpose of trade or manufacture any goods or things with a counterfeit trade mark that the onus will lie on him to show that he acted honestly and did not commit an offence. As it is not proved that the trade marks on the articles recovered from the applicant are counterfeit, there could be no question of the applicant proving his innocence.
8. For the reasons given above the revision is allowed and the conviction and sentence of the applicant are set aside. The fine, if realised, shall be refunded.